ALJDEC decisions subject to certification as final

2014A-787-ROC-RF · Registrar of Contractors · 2016-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: April 8, 2016, at 1:00 p.m. and April 20, 2016, at 8:00 a.m. APPEARANCES: Antonio Z. Canales and Sanjuana B. Canales (“Complainants”) appeared on their own behalf at the April 8, 2016 hearing date, with their daughter, Alicia Canales (“Ms. Canales”); Complainants failed to appear at the April 20, 2016 hearing date; BA Contracting & Restoration of Arizona (“Respondent”) failed to appear at both the April 8, 2016 and the April 20, 2016 hearing dates; The Arizona Registrar of Contractors (“the Registrar”) was represented at the April 8, 2016 hearing date by John Tellier, Esq., Assistant Attorney General, and at the April 20, 2016 hearing date by Thomas Raine, Esq., Assistant Attorney General; the Registrar’s witness, James Barbour, was present on both hearing dates; Spanish language interpreter Sylvia Gallegos of Language Connection was present on both hearing dates. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In a prior proceeding, Respondent was found to have violated Arizona statutes that govern licensed contractors on a project that it undertook at Complainants’ residence. On or about January 27, 2015, Complainants filed with the Registrar a Recovery Fund Claim Form, claiming that they had paid $43,880.00 on their $52,500.00 contract with Respondent and that they had spent $22,489.44 to repair or to complete the project. The address that Complainants provided on the Recovery Fund Claim Form was 2911 W. Garfield St., Phoenix, Arizona 85009.[1] Over the next year, the Registrar investigated Complainants’ claim to the Residential Contractors’ Recovery Fund (“the Fund”). During the investigation, Complainants’ adult daughter, Ms. Canales, communicated with the Registrar’s employees. Complainants’ and Ms. Canales’ signatures appear on all correspondence with the Registrar’s office. On January 25, 2016, the Registrar issued a Notice of Claim for Administrative Payout, informing Complainants and Respondent that “[a]fter review of the claim and all supporting documentation, the Fund has determined that Complainants are to be awarded $1,068.00 in the form of a payout from the Fund.” Complainants requested a hearing on the amount of the proposed payout from the Fund. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On February 25, 2016, the Registrar issued a Notice of Hearing on Complainants’ claim to the Fund, setting a hearing on April 8, 2016, at 1:00 p.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainants at the address they had provided on the Recovery Fund Claim Form. Complainants requested a Spanish interpreter. The OAH arranged for an interpreter to be present at the April 8, 2015 hearing date. Complainants and Ms. Canales appeared at the April 8, 2015 hearing date. Ms. Canales attempted to give opening statement on their behalf and to otherwise provide legal representation to them. Ms. Canales acknowledged that she did not possess an interest in the property where Respondent performed the work and that she was not an active member of the Arizona State Bar. Because representation of injured property owners in cases that the Registrar has referred to the OAH is considered to be the practice of law under Ariz. R. S. Ct. 31, the Registrar’s attorney objected to the representation. The Administrative Law Judge (“ALJ”) sustained the objection. Ms. Canales requested that a further hearing be scheduled to allow Complainants time to retain an attorney or to prepare to represent themselves. The Registrar’s attorney did not object to a further hearing. No evidence was taken on April 8, 2016. On that date, however, the ALJ issued an order setting a further hearing on April 20, 2016, at 8:00 a.m. to allow Complainants an opportunity to present their case, either on their own behalf or through an attorney. Staff at the OAH mailed the ALJ’s April 8, 2016 order to Complainants at the address they provided on the Recovery Fund Claim Form. A further hearing was held on April 20, 2016. The Registrar’s attorney and witness and the Spanish language interpreter appeared. Although the beginning of the duly noticed further hearing was delayed thirty minutes to allow Complainants additional travel time, they did not appear, personally or through an attorney, did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, and did not present any evidence to establish that the Registrar erred in offering them a payout from the Fund in the amount of $1,068.00. CONCLUSIONS OF LAW 1. The April 8, 2016 order setting a further hearing at Complainants’ request that staff at the OAH mailed to Complainants at the address that they provided on the Recovery Fund Claim Form was reasonable and Complainants are deemed to have received the notice of the further hearing.[2] 2. Complainants bear the burden of proof to establish that the Registrar erred in calculating the amount of the payout that they should recover from the Fund by a preponderance of the evidence.[3] 3. By failing to appear at the duly noticed further hearing that was scheduled at their request and by failing to present any evidence in support of their claim, Complainants failed to establish that the Registrar erred in calculating the amount of the payout that they should recover from the Fund. RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainants Antonio Z. Canales and Sanjuana B. Canales’ appeal of the Registrar of Contractors’ calculation of their payout from the Residential Contractors’ Recovery Fund in Case No. 2014-787 shall be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, April 20, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Exhibit 1. The Registrar’s exhibits were provided at the April 8, 2016 hearing date but never submitted into evidence. The Administrative Law Judge takes administrative notice of the exhibits to explain the background of this matter in this recommended decision. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 32-1132(A); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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